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            OF MARYLAND

               No. 151

        SEPTEMBER TERM, 1995




               et al.





      Opinion by Cathell, J.

                                                   Filed:     November 6, 1995

      Appellant, Friedman & Fuller, P.C. (F&F), appeals entry in the

Circuit Court for Montgomery County of summary judgment in favor of

the   appellees,   Gregg   Funkhouser     (Funkhouser),     and   Hollrah    &

Bernstein, P.C., and its principals, Jeffrey Bernstein and Glenn

Hollrah (collectively, H&B).     Appellant brought suit, alleging, inter

alia, breach of an employment contract with Funkhouser, to which

appellees   asserted   a   Statute   of   Frauds   defense.       On   appeal,

appellant poses the following questions for our review:

                 1. Did the    trial court err by granting
            summary judgment   based on the Maryland Statute
            of Frauds where     Funkhouser acknowledged the
            existence of an     agreement in his deposition

                 2. Did the trial court err by granting
            summary judgment based on the Maryland Statute
            of Frauds where Funkhouser signed [] one of
            several connected writings constituting the
            entire memorandum?

                 3. Did the trial court err by granting
            summary judgment based on the Maryland Statute
            of Frauds where F&F's performance removed the
            Employment Agreement from within the Statute
            of Frauds?

                 4. Did the trial court err by granting
            summary judgment based on the Maryland Statute
            of Frauds where Funkhouser's promises to
            prepare and sign a writing estopped him from
            raising the Statute of Frauds as a defense to
            the Employment Agreement?
                                    - 2 -

                 5. Did the trial court err by granting
            summary judgment based on the Maryland Statute
            of Frauds where the parties intended to save
            provisions performable within a year even if
            other provisions were unenforceable under the
            Statute of Frauds?

                 6. Did the trial court err by granting
            summary judgment on F&F's interference with
            contract and p[ro]spective business advantage
            claims solely because the Employment Agreement
            was not enforceable under the Statute of

                                THE FACTS

     Funkhouser was hired by F&F in July of 1990 to market the

firm's accounting services to government contractors.            In July of

1992,    Funkhouser   and   F&F's   president,     Barry   Friedman,   began

negotiating a new employment relationship, under which Funkhouser

would be placed on a track leading him toward an ownership interest

in the firm.   In drafting the agreement, Funkhouser and F&F worked

from a sample contract normally used by F&F, on which Funkhouser

noted modifications in accord with the negotiations.             Funkhouser

agreed to draft and present for signature a memorial of the agreed-

upon terms and modifications of the sample contract.           The proposed

terms allegedly included, inter alia, the noncompetition and trade

secrets provisions at issue in the instant case.           Also incorporated

within   the   contemplated   agreement     were   provisions    respecting

Funkhouser's acquisition of an ownership interest in F&F.          Specifi-

cally, Funkhouser was to receive a retroactive salary increase of
                                 - 3 -

$5,000 and "career path incentive" bonuses upon the achievement of

differing levels of total sales revenues.

        It is undisputed that Funkhouser began drafting the agreement,

utilizing F&F's computers and that, on August 3, 1992, consonant

with the as yet unmemorialized employment agreement, he applied for

and received a specified bonus and increase in salary for achieving

$250,000 in total sales, benefits he would not otherwise have been

entitled to receive previously.    As of the receipt of the benefits,

a written rendering of the agreement had not been completed.

     In the fall of 1992, Funkhouser requested and was granted a

change in the noncompetition provision.      Again, Funkhouser agreed

to memorialize the agreement to conform with the negotiations.

Indeed, Funkhouser had prepared several revisions of the agreement

as the negotiations progressed and terms were refined and final-

ized.     In his affidavit, Friedman avers that, between January and

May of 1993, his repeated requests for a copy of the completed

agreement went unheeded; Funkhouser assured him that the draft,

encompassing all agreed-upon terms and modifications, was completed

and affirmed his commitment thereto but failed to produce one

bearing his signature.

     Although the precise date is not clear, by the middle of 1993,

Funkhouser had begun discussions regarding employment with H&B.     It

was also around that time that F&F began detecting a "deteriora-

tion" in Funkhouser's work product.      On August 9, 1993, Funkhouser

tendered his resignation from F&F and began working at H&B.       F&F
                                - 4 -

alleges that Funkhouser then "immediately" began soliciting its

clients.     On December 23, 1993, F&F filed a Complaint, naming

Funkhouser as a defendant, seeking injunctive relief and damages

for Funkhouser's alleged violation of the noncompetition and trade

secrets provisions of the employment agreement.       As discovery

progressed, F&F verified H&B's involvement in the matter and, on

May 2, 1994, amended its Complaint to include H&B.   In addition to

seeking permanent injunctive relief against appellees for breach of

the covenant and misappropriation of trade secrets (Count 1) and

damages therefor (Counts 2, 3, and 6), F&F also sought damages for

fraud and negligent misrepresentation (Count 4), tortious interfer-

ence with prospective business advantage and unfair competition

(Count 5), civil conspiracy (Count 7), and conversion (Count 8).

     On May 16, 1994, appellees filed their Answer, along with a

Motion to Dismiss Amended Complaint.      In the motion, appellees

sought dismissal of Counts 1, 2, 4, 5, and 7 on Statute of Frauds

grounds, supporting same with Funkhouser's affidavit attesting to

his failure to sign the agreement.      Pursuant to Rule 2-322(c),1

         That Rule reads, in pertinent part:

                 (c) Disposition. — . . . If, on a motion
            to dismiss for failure of the pleading to
            state a claim upon which relief can be grant-
            ed, matters outside the pleading are pre-
            sented to and not excluded by the court, the
            motion shall be treated as one for summary
            judgment and disposed of as provided in Rule
            2-501, and all parties shall be given reason-
            able opportunity to present all material made
            pertinent to such a motion by Rule 2-501.
                                      - 5 -

appellees'    motion    was    considered      to    be    a   motion    for   summary

judgment.    Appellant opposed the motion, relying on, inter alia, Barry

Friedman's     affidavit.       The    trial     court      ordered     that   summary

judgment be entered in favor of all appellees on counts 1, 2, 4,

and 7 on September 28, 1994.          Appellant agreed, per Rule 2-506(a),

to   a   voluntary     dismissal      of   the      remaining      claims, without

prejudice,     rendering      the   September       28,    1994   Order   final     for

purposes of appeal.        Appellant then noted this appeal from that


                           THE STANDARD OF REVIEW

      In reviewing the grant of a summary judgment motion, we are

concerned with whether a dispute of material fact exists.                        King v.

Bankerd, 303 Md. 98, 110-11 (1985).            See also Hartford Ins. Co. v. Manor Inn of

Bethesda, Inc., 335 Md. 135, 144 (1994); Arnold Developer, Inc. v. Collins, 318

Md. 259, 261-62 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408

(1989); Nationwide Mut. Ins. Co. v. Scherr, 101 Md. App. 690, 694, cert. denied,

337 Md. 214 (1994); Markey v. Wolf, 92 Md. App. 137, 170 (1992).                      "A

material fact is a fact the resolution of which will somehow affect

the outcome of the case."           King, 303 Md. at 111 (citing Lynx, Inc. v.

Ordnance Prods., Inc., 273 Md. 1, 8 (1974)).              "A dispute as to a fact

See also Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md. App. 772 (1992), cert.
denied, 330 Md. 319 (1993).
                                    - 6 -

`relating to grounds upon which the decision is not rested is not

a dispute with respect to a material fact and such dispute does not

prevent the entry of summary judgment.'" Seaboard Sur. Co. v. Richard F. Kline,

Inc., 91 Md. App. 236, 242-43 (1992) (quoting Salisbury Beauty Schs. v. State

Bd. of Cosmetologists, 268 Md. 32, 40 (1973)).   In order for there to be

disputed facts sufficient to render summary judgment inappropriate,

"there must be evidence on which the jury could reasonably find for

the plaintiff."      Seaboard, 91 Md. App. at 244.       If the motion and

response thereto demonstrate that there is no genuine dispute as to

any material fact, the moving party is entitled to judgment as a

matter of law.      See Lowman v. Consolidated Rail Corp., 68 Md. App. 64, 70,

cert. denied, 307 Md. 406 (1986) (Once the moving party has provided

the trial court with sufficient grounds for summary judgment, "[i]t

is . . . incumbent upon the other party to demonstrate that there

is indeed a genuine dispute as to a material fact.").             See also King,

303 Md. at 112; Hurt v. Stillman & Dolan, Inc., 35 Md. App. 644, 647 (1977).



      Appellant avers that there existed a genuine issue of material

fact as to the existence of a memorandum sufficient to satisfy the

Statute of Frauds or sufficient to except it from the Statute's

requirement of a writing, so as to preclude entry of summary
                                   - 7 -

judgment in favor of Funkhouser.     We agree and reverse the judgment

of the trial court in that respect.        We explain.

     In approaching any matter potentially involving the Statute of

Frauds, we first determine whether the case is one that falls

within its provisions, as set forth in Maryland Code (1957, 1993

Repl. Vol.), Art. 39C § 1.     If it does, we address the sufficiency

of the writing involved; otherwise, the Statute is not applicable.

If the writing contains the requisite formalities, our inquiry

ceases.   If not, we look to find whether the contract is enforce-

able under equitable theories of estoppel or part performance.         See

Snyder v. Snyder, 79 Md. App. 448, cert. denied, 317 Md. 511 (1989).



     In order to prevent fraud against one sought to be charged

under a contract, the law has determined that certain contracts are

so subject to prevarication that they shall not be enforced unless

in writing.    Contracts to which this rule is made applicable are

enumerated in the Statute of Frauds, which "grew out of a purpose

to intercept the frequency and success of actions based on nothing

more than loose verbal statements or mere innuendoes." 72 Am. Jur.

2d Statute of Frauds § 7 (1974).   Although the Statute requires any

contract that falls within its scope to be in writing or evidenced

thereby, we note that it in no way divests the parties of the right
                                      - 8 -

to contract; it merely governs the procedures to which they must

adhere so as to render their contract enforceable.                   See Baldwin v.

Grymes, 232 Md. 470, 475 (1963) (The Statute affects only the remedy

sought and not the validity of the contract at issue.).                   Finding

its origins in and modeled after the English statute, An Act for

the   Prevention     of   Frauds    and   Perjuries,     29   Car.   2,    ch.   3

(1676)(Eng.), the Maryland Statute of Frauds reads, in pertinent


                   No action may be brought:

                   . . . .

                  (3) Upon any agreement that is not to be
             performed within the space of one year from
             the making thereof[.]

             Unless the . . . agreement . . . or some
             memorandum . . . is in writing and signed by
             the party to be charged . . . .

It is with subsection (3) that we concern ourselves in the case sub


      Subsection 3 of Maryland's Statute of Frauds comprises what is

known as the one-year provision of the Statute encompassing those

contracts that cannot possibly be completely performed within a

year.     See Ellicott v. Peterson, 4 Md. 476, 488 (1853); Restatement (Second) of

Contracts §§ 110(e), 130 cmt. a (1981).       The one-year period commences

upon the completion of the agreement, i.e., generally, when the offer

is accepted, and "does not turn on the actual course of subsequent
                                      - 9 -

events, nor on the expectations of the parties as to the probabili-

ties."    Restatement (Second) of Contracts § 130 cmt. a (1981). See also General

Fed. Const., Inc. v. James A. Federline, Inc., 283 Md. 691, 695 (1978); Campbell v.

Burnett, 120 Md. 214, 224 (1913).         A contract that fails to specify

any time frame within which its terms are to be fulfilled is a

contract of indefinite duration, and is not within the Statute,

though it may extend beyond the year.           Ellicott, 4 Md. at 488; Campbell,

120 Md. at 224.      See also Restatement (Second) of Contracts § 130 cmt. a (1981).

      There are two situations in which the one-year provision will

operate to bar a claim:

            One occurs when the parties "`expressly and
            specifically' agree[] that their oral con-
            tracts [are] not to be performed within one
            year."      Sun Cab Co. v. Carmody, 257 Md. 345, 350
            (1970). The other occurs when it is impossi-
            ble by the terms of the contract for it to be
            performed fully within one year.             Chesapeake
            Financial Corp. v. Laird, 289 Md. 594, 600 (1981).

Griffith v. One Inv. Plaza Assocs., 62 Md. App. 1, 5 (1985).

      The covenants to which Funkhouser is subject are alleged2 to

be as follows:

                   9. Non-Competition Agreement.

                    (a) Upon termination of this Employ-
            ment Agreement: (1) the Employee shall not be
            entitled to perform the same or similar ser-

       Although F&F states that it located the completed agree-
ment within Funkhouser's personal effects at F&F, we find none in
the record and, thus, extrapolate what we perceive to have been
the provisions at issue from the briefs and extract.
                   - 10 -

vices (services defined as client development
of government contractors) as those rendered
for the Corporation for another individual,
firm, association, partnership, corporation,
group, other person, or entity (together and
individually, an "Entity") located within the
Washington metropolitan area for a period of
one (1) year; (2) the Employee will not di-
rectly or indirectly induce any clients of the
Corporation or FF&I or F&F to patronize any
person, firm, or association rendering prod-
ucts or services similar to those rendered by
the Corporation hereinafter referred to as the
Competitor, within the Washington metropolitan
area for a two (2) year period following
termination of this Employment Agreement, nor
will the Employee directly or indirectly
handle, manage, supervise, render or perform
any service for a client of the Corporation
similar to those rendered by the Corporation
for or on behalf of the Competitor within the
Washington metropolitan area for a two (2)
year period following termination of the
Employment Agreement.

        (b) In the event of a breach of Provi-
sion 9(a)(1), the Employee agrees to pay the
Corporation fifty thousand ($50,000) dollars
within sixty (60) days f[rom] the date of such

        (c) In the event of a breach of Provi-
sion 9(a)(2), the Employee agrees to pay the
Corporation an amount equal to the fees billed
by the Corporation ("F&F Fees") to the appli-
cable client during the two (2) year period
prior to and ending on the earlier of the date
(the "Engagement Date") the Employee or Com-
petitor (i) began providing Accounting Servic-
es [to] the Corporation client or (ii) ac-
cepted an engagement to provide Accounting
Services to that Corporation client.      Said
amount shall be paid in full to the Corpora-
tion within fifteen (15) days after the En-
gagement Date.

        . . . .
                                    - 11 -

                     (e) In the event that a court of
           competent jurisdiction shall determine in any
           case that the enforcement of the covenant
           contained in Section 9(a) or (b) would not be
           reasonable, but that enforcement of a covenant
           which is more limited in time or geographic
           area would be reasonable, it is intended that
           the more limited covenant determined by such
           court to be reasonable shall be given effect
           in such case in lieu of the covenant contained
           in Section 9(a) or (b).

                     . . . .

                11. Proprietary Information.  All files, work
           papers,   spreadsheets,        records,  financial
           information, data base information, and simi-
           lar items (including any photocopies or elec-
           tronic media versions of any of the above)
           relating to the Corporation as well as any
           Corporation client or prospective client,
           whether prepared by the Employee or otherwise
           coming into the Employee's possession, will at
           all times remain the exclusive property of the
           Corporation. The Employee agrees not to make
           or retain copies of such materials and to
           deliver promptly upon the Corporation's writ-
           ten request all such materials in his/her
           possession after the date of termination of
           this Employment Agreement.

     In General Fed. Constr., Inc. v. James A. Federline, Inc., supra, 283 Md. 691,

Federline submitted a bid to do mechanical work on a project headed

by General Federal Construction (GFC).          GFC used Federline's bid in

submitting its own bid, but then awarded the subcontract to another

firm.   Federline brought suit based on the alleged breach of "an

express oral agreement," i.e., the bid. 283 Md. at 692-93.                     GFC

unsuccessfully asserted a Statute of Frauds defense at the trial

court level, relying on Art. 39C § 1(3).               Though the underlying

mechanical work could have been performed within one year, the
                                     - 12 -

Court of Appeals noted that certain other obligations under the

contract, such as maintenance and inspections, were not scheduled

to be, and could not begin to be, performed until after completion

of the project, rendering § 1(3) of the Statute applicable.

      Similarly, when faced with an action under an oral employment

contract, in Collection & Investigation Bureau of Maryland, Inc. v. Linsley, 37 Md.

App. 66 (1977), we held that the covenant not to compete "for a

period of two . . . years immediately following termination of

employment,"     37   Md.   App.   at   69,    contained   within    a   one-year

employment     agreement    was    within     subsection   (3),   the    one-year

provision of the Statute, because, by its terms, it could not be

performed in less than two years.             Id. at 73.

      The trial court therefore properly concluded that the Statute

of Frauds applied to the matters presented herein.                  We shall now

determine what the Statute's provisions require and whether they

were complied with in the instant case.
                                    - 13 -



      Operating to render unenforceable certain contracts by reason

of their failure to conform with the requisite formalities, Mary-

land's Statute of Frauds requires that

               the contract or agreement upon which the
               action is brought, or some memorandum or note
               of it, is in writing and signed by the party
               to be charged, or some other person lawfully
               authorized by him.

Art. 39C § 1.      The writing must contain the names of the parties,

set forth the contract's terms and conditions, describe the subject

matter of the contract, and be signed by the party to be charged.

Beall v. Beall, 291 Md. 224, 228-29 (1981); Forsyth v. Brillhart, 216 Md. 437,

440 (1958); Snyder, 79 Md. App. at 453; 72 Am. Jur. 2d Statute of Frauds

§ 295 (1974); Restatement (Second) of Contracts § 131 (1981).    It is with the

last of these requirements that we now concern ourselves.

      Appellant asseverates that, despite the lack of a formally

signed contract, a memorandum satisfying the Statute exists by

virtue    of    "Funkhouser's   signing     of   one   of   several   connected

writings referencing the Employment Agreement."3                By this, appel-

lant refers to the Monthly Commission Report Funkhouser filed on

       While we shall reverse for other reasons, the extract
contains an agreement that, though not signed above a formal
signature block, appellee admits contains his signature, in his
handwriting, at the top of the title page. It may, itself,
satisfy the Statute's requirement of a signed writing.
                                   - 14 -

August 3, 1992 to receive his first bonus and salary increase after

achieving $250,000 in total sales.            In that report, after writing

his name at the top, Funkhouser wrote "$250,000 — BONUS" and

"$5,000" in the appropriate columns.               In view thereof, appellant

urges us to conclude that this, in conjunction with the unsigned

agreement,   met   the     formalities   of    the    Statute:      "This   was   an

unequivocal internal reference to the career path incentive terms

and compensation chart of the . . . Employment Agreement."

     Appellees do not agree; they argue, citing Judge Delaplaine's

language in Sinclair v. Weber, 204 Md. 324, 332 (1954), that in order

for multiple writings (only one of which bears the signature4 of

the party to be charged) to conform to the Statute of Frauds, one

of the following must exist:

          (1) the signed writing is physically annexed
          to the other writing by the party to be
          charged, or (2) the signed writing refers to
          the unsigned writing, or (3) it appears from
          examination of all the writings that the
          signed writing was signed with reference to
          the unsigned writings.

Appellees assert that none of these is met on the facts presented.

We do not agree, particularly in regard to (3).

     Appellees     state    that   "there     is     nothing   in    the    Monthly

Commission Report, the Draft Agreement or any other document in the

        "[I]t has been recognized that a printed name constitutes
a sufficient signature under the Statute of Frauds, provided that
it is recognized by the party sought to be charged." Dubrowin v.
Schremp, 248 Md. 166, 172 (1967). See also Drury v. Young, 58 Md. 546,
554 (1882).
                                  - 15 -

record to show that the Monthly Commission Report was initialed

with reference to the noncompetition provisions of the Draft

Agreement."    It is undisputed that, in the case sub judice, Funkhouser

wrote his name on the Report.     Thus, it constituted a signature and

shall be so regarded for purposes of this discussion.             Appellees

misconstrue the logic and intent of the third option set out by

Judge Delaplaine — "reference to the unsigned writing[]" does not

mean that reference in a signed writing to one portion of an

unsigned writing rather than the unsigned writing as a whole

precludes     its   characterization    as   a   memorandum   sufficient   to

satisfy the Statute of Frauds when read in conjunction with that

signed writing.     The "reference" Funkhouser made in the Report was

to the incentives and bonus portions of the contract.              The fact

that the noncompetition and trade secrets provisions were located

separate and distinct from the incentive provisions does not

preclude the ability to characterize the "reference" as one to the

contract in toto.      Otherwise, no signed writing referencing one

portion of an unsigned writing would ever constitute a memorandum

complying with the Statute.      Accordingly, and in view of our note

as to the appearance of an informal signature on a copy of a

related writing, we question the correctness of the trial court's

conclusion that there was not a sufficient memorandum in this case

to take it out of the Statute of Frauds.

                                      - 16 -

                               ESCAPE MECHANISMS

      Moreover, the Statute of Frauds is not completely dispositive

of the enforceability vel non of a contract falling within its

provisions.     Certain actions under a contract by either one or both

parties may be characterized as having effectively taken the

contract out of the Statute, thus rendering it enforceable, despite

the absence of a duly evidenced writing.            Indeed, in the absence of

such a qualified writing, courts often look to equity as a basis

for relief.

                             a. Part Performance

      We note, as a predicate to our discussion, that a remedy is

available on an oral contract within the Statute based upon part

performance if the facts present a case for equitable relief.                    See

Unitas v. Temple, 314 Md. 689, 701 (1989); Winternitz v. Summit Hills Joint Venture,

73 Md. App. 16, 22-23 (1987), cert. denied, 312 Md. 127 (1988);

Restatement (Second) of Contracts § 129 (1981).

      The doctrine of part performance is premised upon the notion

that to allow a party to escape his performance of an oral

agreement after he has permitted the plaintiff to perform in

reliance on both the agreement and the defendant's inducements

would effect a fraud upon the plaintiff.                   We note that part

performance is not a substitute for the writing required by the

Statute but rather, it may be viewed as a means to estop the
                                  - 17 -

defendant from asserting the Statute as a defense.          See 73 Am. Jur.

2d Statute of Frauds §§ 399, 400 (1974).   We further note that

           "part performance will not make an oral con-
           tract enforceable unless it is such as to be
           directly `referable' to that contract. . . .

                 . . . .

                . . . [T]he part performance must be
           clearly evidential of the existence of a
           contract — it must be such as would not ordi-
           narily have taken place in the absence of a
           contract and therefore is not reasonably
           explicable on some other ground."

Unitas, 314 Md. at 702 (quoting 2 A. Corbin, Corbin on Contracts § 430

(1950) (footnotes omitted)).     See also Hamilton v. Thirston, 93 Md. 213, 219

(1901); Snyder, 79 Md. App. at 456 ("`[T]he acts of part performance

must be such as show that some contract exists between the parties;

that they were done in pursuance thereof, and that it is not

inconsistent with the one alleged in the pleading.'" (quoting Unitas,

314 Md. at 708)).       Indeed, "the part performance itself `must

furnish evidence of the identity of the contract; and it is not

enough that it is evidence of some agreement, but it must relate to

and be unequivocal evidence of the particular agreement . . . .'"

Beall, supra, 291 Md. at 230 (quoting Semmes v. Worthington, 38 Md. 298,

326-27 (1873) (some emphasis omitted from original)).             See also Mann

v. White Marsh Properties, Inc., 321 Md. 111, 117-18 (1990) (The Statute of
                                   - 18 -

Frauds "is not satisfied by part performance based upon acts that

are equivocal as to the existence of a contract.").

      We find the Court of Appeals's reasoning in Semmes v. Worthington,

supra, particularly instructive in addressing the propriety vel non of

applying the doctrine of part performance to the case sub judice.            In

Semmes, a nephew and his uncle had an arrangement whereby the former

worked on the latter's farm as a tenant.          The two had a falling out

and the nephew left the farm.       He returned shortly thereafter, upon

the uncle's promise that he would inherit the farm after his

uncle's death.       Nevertheless,     the   uncle's    will   made   no   such

provision, and the Court concluded that the nephew's "partial and

subordinate possession" of the farm was, "to make the most of it,

an equivocal act, susceptible of a variety of interpretations, and affording no

evidence    or   presumption    whatever     of   the   particular    contract

alleged."    38 Md. at 326 (emphasis added).        As opposing counsel in

Semmes pointed out, the nephew's "occupation was of precisely the

same nature before he quitted the farm that it was after his return

to it."    Id. at 309.   Indeed, it appeared that the work the nephew

performed would have been undertaken whether or not the contract

existed.    For that reason, the Semmes Court held that the nephew's

actions could not be unequivocally referable to the alleged oral

contract he sought to have enforced.
                                  - 19 -

      The same cannot be said for the facts presented in the case sub

judice.    Funkhouser's acceptance of bonus monies from appellant

cannot be construed as anything other than compensation pursuant to

the employment agreement Funkhouser now seeks to avoid.         Funkhouser

was not otherwise entitled to such payments, and F&F would not have

paid same in the absence of what it perceived to be a legally

binding contract.       There can be no other interpretation of the

facts.      F&F's actions in paying the bonuses and Funkhouser's

acceptance of them can only be attributed to the parties' adherence

to the agreement.      But for the agreement, appellant had no other

obligation to pay the bonuses and Funkhouser had no other right to

receive the money.       Based on the facts available, prior to the

agreement, appellant and Funkhouser were not in a relationship that

afforded     or   potentially   would    have   afforded   Funkhouser   such

benefits.     The payments, therefore, can only be referable to the

contract at issue and no other.         Indeed, appellees do not deny this

or put forth evidence to the contrary.

      As we have said, "such acts [relying on the contract] must be

clear and definite and refer exclusively to the alleged agreement."

Hamilton, supra, 93 Md. at 219.   To "require the acts of part perfor-

mance to prove the exact contract as alleged," however, is not

necessary.    Unitas, 314 Md. at 708.     Indeed, the acts of part perfor-

mance and the evidence establishing them
                                 - 20 -

           ". . . cannot fully show what are the terms of
           the agreement alleged and relied upon by the
           plaintiff, nor are they introduced for any
           such purpose. . . .    [T]he acts . . . must
           [simply] be such as show that some contract
           exists between the parties; that they were
           done in pursuance thereof, and that it is not
           inconsistent with the one alleged in the

Unitas, 314 Md. at 708.     Thus, F&F's issuance of bonuses to Funk-

houser under the compensation provisions of the purported agreement

does not mean that the noncompetition and trade secrets provisions

were not also contained within the terms of the agreement.       Indeed,

Funkhouser concedes in his deposition that an "agreement" whereby

he would, inter alia, not compete with F&F had been reached.    Rather,

given the change in the rights and duties of the parties as a

result of the agreement, it raises an issue as to the implementa-

tion of the contract.

     We hold, therefore, that F&F's payment of money to Funkhouser

under the agreement and Funkhouser's acceptance of those sums

raised a genuine issue of material fact as to the existence of a

partial performance sufficient to take the agreement out of the

Statute   of   Fraud's   requirements.    Under   these   circumstances,

summary judgment in favor of appellees was improper.

                              b. Estoppel

     Appellant also urges us to enforce the employment agreement on

general estoppel grounds.    Not only did Funkhouser promise to draft

the agreement, appellant contends, he continually reaffirmed his
                                   - 21 -

commitment thereto and reaped benefits arising therefrom in the

process.      These actions, appellant continues, "induced" F&F to

continue his employment, to give Funkhouser financial rewards and

professional training, and to permit continued access to F&F's

files and clients.      Appellees deny that the facts justify these


     The application of the doctrine of equitable estoppel is very

fact-specific.     Dixon v. Process Corp., 38 Md. App. 644, 658, cert. denied,

282 Md. 731 (1978).       Not only must "the party against whom the

application of the doctrine is sought . . . be[] blameworthy `of

some unconscientious, inequitable or fraudulent act of commission

or omission upon which another has relied and been misled to his

injury,'" id. (quoting Rodgers v. John, 131 Md. 455, 462 (1917)), but

the aggrieved party must also have acted with reasonable diligence

in order to come within, at the least, the penumbra of equity's

protection.    Id. (citing Savonis v. Burke, 241 Md. 316, 320 (1966); Rupp

v. M.S. Johnston Co., 226 Md. 181, 190 (1961); J.F. Johnson Lumber Co. v.

Magruder, 218 Md. 440, 448 (1958)).

     The facts of the instant case at least give rise to a dispute

of material fact as to the propriety vel non of Funkhouser's actions

in respect to his representations to appellant.            Moreover, given

the fact intensive nature of the conflict — and of the remedy — it

was inappropriate to dispose of the matter on summary judgment.

                                    - 22 -

                 [i]n order to prevail with respect to
           promissory estoppel, evidence must be offered
           to show that: the promise was fraudulently
           made, [the promisor] anticipated that [the
           promisee] would rely on the oral promise, the
           reliance was reasonable, [the promisee] en-
           gaged in acts unequivocally referable to the
           oral promise, and [the promisee] suffered
           substantial injury as a result of [the] reli-

Snyder, 79 Md. App. at 459.    When he told F&F that the agreement had

been completed, Funkhouser might well have anticipated that F&F

would act in accordance with its provisions.                   As we previously

stated, in paying out bonus money and salary increases, F&F did so

because it perceived that both it and Funkhouser were obliged under

the agreement that Funkhouser had told them he had drafted.                    As

appellees correctly indicate, however, evidence of Funkhouser's

fraud must be proven by clear and convincing evidence.                   Dixon, 38

Md. App. at 656.     It is not at all clear that appellant could not

have met     this   burden.    In   any    event,      sufficient   conflicting

material facts      were   raised   so    as     to   render   summary   judgment

especially    inappropriate     under      the    circumstances.         As   with

equitable estoppel, the trial court failed to give proper consider-

ation to the nature and character of promissory estoppel and erred

in entering judgment in favor of Funkhouser.


     Appellant similarly posits that the trial court improperly

granted summary judgment in favor of H&B on its interference with
                                     - 23 -

contract and with prospective business advantage claims.                    H&B,

appellant     argues,    "grounded    their    sole   argument    for   summary

judgment on the unenforceability of the Employment Agreement, not

the lack of factual disputes on the underlying actions comprising

the torts themselves."         Essentially, H&B posits that, in the

absence of an enforceable contract, there could be no interference

claim in respect thereto.       We do not agree.

     "[I]t usually is held that contracts which are voidable by

reason of the statute of frauds . . . can still afford a basis for

a tort action when the defendant interferes with their perfor-

mance."    Daugherty v. Kessler, 264 Md. 281, 186 (1972), and cases cited

therein.     Thus, H&B cannot avail itself of the agreement it puts

forth in defense of F&F's interference claims.           With this in mind,

we now look to the requirements of the tort itself.

     In Winternitz, supra, 73 Md. App. 16, we described the tort of

intentional interference with contract in the following manner: "`a

third     party   who,   without     legal    justification,     intentionally

interferes with the right of a party to a contract, or induces a

breach thereof, is liable in tort to the injured contracting

party.'"    Id. at 25 (quoting Orfanos v. Athenian, Inc., 66 Md. App. 507, 520

(1986).     See also Restatement (Second) of Contracts §§ 766-767 (1981).     An

action grounded on the tort "has two general manifestations . .

.[:] when a third party's intentional interference with another in

his or her business or occupation induces a breach of an existing
                                   - 24 -

contract or, absent an existing contract, maliciously or wrongfully

infringes upon an economic relationship."         Macklin v. Robert Logan Assocs.,

334 Md. 287, 297 (1994) (citation omitted).            See also Alexander & Alexander

Inc. v. B. Dixon Evander & Assocs., Inc., 336 Md. 635, 650-51 (1994); Natural

Design, Inc. v. Rouse Co., 302 Md. 47, 69-70 (1984).     The former instance,

i.e., inducing the breach of an existing contract, narrowly construes

the ability to interfere with the parties' obligations under the

contract.     The     latter,   however,   provides      a   broader    right     to

interfere without tortious consequences.           It has been recognized

that contracts at will fall within the second category of the tort

— "it may or may not continue at the sole option of one of the

parties," neither having a vested interest therein.              Macklin, 334 Md.

at 299.

      As stated,

                 [t]o establish tortious interference with
            prospective contractual relations, it is
            necessary to prove both a tortious intent and
            improper or wrongful conduct.

Id. at 301.   The Macklin Court described these elements in depth: the

former is proven by demonstrating that "the defendant intentionally

induced the breach or termination of the contract in order to harm

the plaintiff or to benefit the defendant at the expense of the

plaintiff."     Id.    "[O]rdinarily," the Court continued, "whether

particular conduct is proper or improper is a factual question to

be determined on the basis of all the facts and circumstances."                  Id.
                                 - 25 -

       Our review of the record leads us to conclude that the trial

court did, in fact, err in granting summary judgment in favor of

H&B.    Appellant presented enough facts as to material matters to

withstand such a motion.    There can be no doubt that H&B's service

of F&F's former clients inured to its benefit.    Furthermore, it is

improper summarily to determine the propriety vel non of H&B's

conduct with respect to its association with Funkhouser.   A genuine

issue of material fact arose concerning whether H&B's actions were

sufficient to render it liable to appellant under the broader

variation of the tort, and the trial court erred in entering

judgment in favor of H&B.


       The trial court erred in granting summary judgment in favor of

both appellees.    We reverse.

                                      JUDGMENTS REVERSED; COSTS TO BE

                                      PAID EQUALLY BY APPELLEES.

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